Rani (Migration)

[2022] AATA 4905

Rani (Migration) [2022] AATA 4905 (13 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rama Rani
Mr Raman Kumar

CASE NUMBER:  1928410

HOME AFFAIRS REFERENCE(S):          BCC2018/644981

MEMBER:Bridget Cullen

DATE:13 June 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 13 June 2022 at 2.37pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – contract administrator – subject of approved position nomination – related nomination application refused with no jurisdiction to review – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(1), (3), 187.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 7 February 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Contract Administrator (ANZSCO 511111).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the applicant’s associated nomination was not approved.

6. The Tribunal originally listed this application for review on 14 March 2022. The applicant, on 17 February 2022, requested a postponement of the hearing on the basis of difficulties relating to her newborn child, and provided a medical certificate. The Tribunal, upon request of the applicant, adjourned the application for review until at least mid-May.

7. The applicants appeared before the Tribunal on 13 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr Raman Kumar. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Tribunal confirmed that the applicant understood the Tribunal’s questions, as well as the interpretation, at the conclusion of the hearing. The applicant told the Tribunal that she did understand.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is nominated in accordance with cl 187.233 of the Regulations.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

12. The review of the nomination refusal was finalised by the Tribunal on 15 June 2021, with the Tribunal finding it did not have jurisdiction. This means that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations. The Tribunal explained to the applicants that the information before it indicated that the related nomination application lodged by Dreamweaver Education Consultancy Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister, and had not been approved.

13. The Tribunal explained to the applicant that without approval of the related nomination, the Tribunal would not be able to find that she met the criteria for the Subclass 187 visa, as the Tribunal had no discretion to change or vary the criteria. The applicant was invited to comment on whether the nomination had been approved. She told the Tribunal that, “I don’t want to make any comment”. The applicant’s husband also told the Tribunal that he did not want to comment.

14. The Tribunal finds the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations. If follows that cl.187.233(3) is not met.

15. Therefore, cl.187.233 is not met. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

16. As the Tribunal has found that the first named applicant does not meet cl.187.233, it therefore follows that the secondary applicant is unable to meet the criteria in relation to secondary applicants, namely cl 187.311, and their decision must also be affirmed.

    decision

17. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Bridget Cullen
    Senior Member

    
    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.